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My sister & her husband, who resides in Washington, have a 4 yr old son. She has recently left him and moved home to California with their son. He was physically abusive to her and the last time to their son. There is no police documentation of these events. They are filing for divorce. Which state does this need to be done in? The father wants the son sent to WA for 30 days and then return to CA for 30 days until he is older and then 6 months back and forth. Is this fair? Does the mother have to agree with this? And if she doesn't agree, does she have to go to WA for court disputes? I appreciate any help.

2 Answers from Attorneys

She would have to be a resident of California for 6 months, and a resident for 90 in the county of filing, before she can file a petition for dissolution of marriage can be filed.

There is not residency requirement to file a petition for legal separation. She can serve this petition and then amend to a dissolution after she has met the residency requirements.

The major problem is that the state in which the child or children resided for the year prior to filing the petition for dissolution.

California courts can take emergency jurisdiction over the case, because of the domestic violation. She sould not send the children to Washington for visitation with father without a court order giving her custody. Allowing visitation with father will weaken her case that he is violent and poses a substantial risk to the children.

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The site contains quite a bit of general information about California Family Law, Tenants' Rights, and Juvenile Dependencies, as well as information about me (education, experience, et cetera) and my office (location, hours, fees, policies).

NOW, IN RESPONSE TO YOUR INQUIRY --

To file for divorce in California you must be a resident of the state for six months and the county for three months. A way around this is to file for a Legal Separation (which has no residency requirement) and then convert the action to a divorce when the six month requirement is satisfied. (A divorce can not become final for six months plus one day after service of the Petition.) I would think that it would be to her advantage to have the proceeding take place locally, but there may be some questions as to the child's home state. She should contact an experienced Family Law attorney in the county where she lives for specific advice and possible representation on her behalf.

Thanks for sharing your interesting inquiry with us on LawGuru, and good luck with your case.